William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police. This happened in an extremely unorthodox fashion. In court, the judge said “Unlock them,” and Montanez was handed both phones. He claimed he couldn’t remember the passcodes, saying they both had been recently purchased. No passcode, no freedom, the judge instantly ruled.

The police have a warrant and claim that’s all they need to demand access to the phones’ contents. But that’s predicated on a string of events that seem constitutionally-dubious, to say the least.

An emergency petition [PDF] (via Florida You Judge) to challenge the judge’s contempt ruling (and the warrant itself) has been filed by Montanez’s attorney, Patrick Leduc. The petition details the traffic stop and arrest of Montanez, which appears to contain a handful of constitutional violations.

Montanez was pulled over for failure to yield. During this stop, a K-9 unit was brought to the scene to sniff Montanez’s car after he refused to consent to a search. This is already questionable. The Supreme Court’s ruling in Rodriguez makes it clear regular traffic stops aren’t supposed to be fishing expeditions. If no reasonable suspicion presents itself (and refusing consent isn’t suspicious activity), officers aren’t allowed to extend stops to further badger drivers into relinquishing consent or bring a dog to scene to ask its permission for a search.

At this point, it’s unknown how much time elapsed between the initiation of the traffic stop and the drug dog’s arrival. All that’s clear from the petition is that the dog wasn’t there when the traffic stop began. Whatever the case, Montanez was never issued a citation for the infraction supposedly triggering the stop.

After the dog told the cops it was ok to perform a warrantless search, officers found a misdemeanor amount of marijuana, supposed THC oil (tested only with a drug field test, so…), and a handgun. The passenger of the car was a felon, so it was illegal for him to have it. The same can’t be said for Montanez. Again, this may have been mooted by Montanez’s mother claiming to own the handgun — something the state has yet to disprove or even offer an opinion about.

Montanez did claim possession of the marijuana and alleged byproducts. Open-shut misdemeanor offense… except that officers seized his two cellphones and obtained a search warrant for them. This was predicated on one thing: a text message saying “omg did they find it” being received on one of the cellphones during the traffic stop.

Whatever “it” is, the officers appear to have found it. Since all the evidence needed to support the misdemeanor possession charges was already in the hands of law enforcement, why the compelling need to search the seized phones? According to the search warrant affidavit [PDF], the phones will apparently contain evidence of the crimes Montanez is charged with, which would seemingly be entirely supported by the marijuana and (alleged) THC oil already in their possession.

[T]here is now being stored on said Cellular iPhone certain evidence, to-wit: images, text messages, files, telephone numbers, call logs, graphic files, digital media and/or digital files, and any other media that can store digital files and/or digital media. Phone records, records of Internet Service Providers, E-mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents files or any other computer data relating to passwords.

Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit:the Laws prohibiting: Possession of Cannabis Less Than 20 grams, Possession of Drug Paraphernalia and Possession of a Firearm During the Commission of a Felony

The felony listed here would be carrying the possession of a firearm by a felon. The only felon in the vehicle was the passenger, but it looks like prosecutors want to hang this on Montanez, despite the only other possible felony available being drug trafficking — and the evidence on hand simply doesn’t support that charge.

In any event, there’s zero chance Montanez’s phones will carry additional evidence of the chargedcriminal acts, which are all predicated on evidence the police have already obtained. The warrant appears to be a fishing expedition to try to prove Montanez is actually a drug dealer so the felony charge sticks. The two misdemeanor charges already have all the evidence prosecutors need, so police are pressing forward with zero probable cause to nail Montanez with a felony. The problem is, the probable cause has to come before the search, not after it, and that’s why his lawyer is challenging the warrant.

The prosecution’s request for contempt of court charges cites another state case as support for compelled passcode production. But the case cited here couldn’t be more different than this one. While it does deal with compelled password production and contempt charges, it also deals with charges of voyeurism and an unchallenged warrant.

First off, there’s a significantly better chance evidence of voyeurism might be contained in a seized cellphone. Second, the warrant in this case is being challenged, which makes it an entirely different judicial animal than the case cited.

As it stands now, Montanez is going to spend six months in jail for preventing police from rooting around in seized cellphones for evidence they don’t need and which would likely be highly irrelevant to these criminal proceedings. The police can’t show probable cause for this search because none exists. And yet, the judge trying the case demanded Montanez unlock the phones in court and when he failed to do so (Montanez claimed he could not remember the passcodes), the judge tossed him in jail to, I guess, jog his memory.

This case stinks all over. Nothing should move forward until the cops give a better accounting of their actions during the stop and come up with something better than “we just really want to look at his phones” under the heading “input probable cause.” But chances are this will all end in Montanez spending an indefinite amount of time in jail without ever having been convicted of a crime.

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